WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20211221 DOCKET: M52943 (C69723)

Before: Gillese, Brown and Coroza JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Kevin Barreau Respondent

and

J.R. Appellant

and

Toronto Police Service Appellant

Counsel: David Butt, for the appellant/moving party J.R. Noah Schachter, for the appellant/moving party Toronto Police Service Nicolas de Montigny, for the respondent Attorney General of Ontario Chris Rudnicki and Theresa Donkor, for the respondent Kevin Barreau

Heard: December 17, 2021 by video conference

On appeal from the judgment of Justice Jill M. Copeland of the Superior Court of Justice, dated July 27, 2021, dismissing an application for certiorari from the order of Justice Russell S. Silverstein of the Ontario Court of Justice, dated May 27, 2021.

Reasons for Decision

1As an issue on this appeal concerns whether the third-party records regime in ss. 278.1 - 278.9 of the Criminal Code, R.S.C., 1985, c. C-46, applies, by order of the panel on the motion this appeal was heard in camera.

2The arguments below focused on the applicability of the third-party records regime to the evidence it was anticipated the former officer (J.R.) would provide. The application judge concluded that the trial judge had not made an error of jurisdiction or an error of law on the face of the record in issuing a subpoena requiring J.R. to testify at Mr. Barreau’s trial. We see no error in her analysis or her conclusions.

3As both the trial judge and application judge held, clearly the third-party records regime would not apply to the oral statements allegedly made by J.R. to her former colleague (“A”), who provided two affidavits on the application before the trial judge.

4As to the draft statement of claim, which in one paragraph repeated the alleged oral statement, both judges below correctly stated the applicable legal principles. In particular, they recognized that the principles in R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, applied to the issue of the lawfulness of how the defence acquired the draft statement of claim. We see no reversible error in their conclusions that settlement and mediation privilege did not apply and, therefore, in the particular circumstances, the third-party records regime did not apply.

5In any event, the trial judge held that if the third-party records regime applied, upon applying the statutory criteria he concluded that production of the draft statement of claim to the defence on its Charter application was necessary in the interests of justice. We see no reversible error in that conclusion.

6The appeal is dismissed.

7The interim stay dated August 9, 2021 granted by Harvison Young J.A. is set aside. Accordingly, the unsealing and set aside orders made by Copeland J. at paras. 29(ii) and (iii) of her endorsement dated July 27, 2021 are now in force.